Bivens, the Judgment Bar, and the Perils of Dynamic Textualism

61 Pages·2016·0.29 MB·English

University of St. Thomas Law Journal
Volume 8
Article 7
Issue 3Spring 2011
2011
Bivens, the Judgment Bar, and the Perils of
Dynamic Textualism
James E. Pfander
Neil Aggarwal
Bluebook Citation
James E. Pfander & Neil Aggarwal,Bivens, the Judgment Bar, and the Perils of Dynamic Textualism, 8 U. St. Thomas L.J. 417 (2011).
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A
RTICLE
B , J B ,
IVENS THE UDGMENT AR AND THE
P D T
ERILS OF YNAMIC EXTUALISM
JAMES E. PFANDER* AND NEIL AGGARWAL**
The judgment in an action under section 1346(b) of this title shall
constitute a complete bar to any action by the claimant, by reason
of the same subject matter, against the employee of the govern-
ment whose act or omission gave rise to the claim.1
Introduction ..................................................... 418 R
I. The 1946 Judgment Bar and the Coordination of Vicarious
Liability ................................................. 424 R
A. The Adoption of the FTCA........................... 424 R
B. Understanding the Judgment Bar...................... 427 R
1. The Judgment Bar at Common Law............... 429 R
2. The Judgment Bar as Codified.................... 439 R
3. The Judgment Bar in Operation................... 445 R
4. The Drivers Act: Confirming the Narrow Scope of
the Judgment Bar ................................ 448 R
5. The 1974 Amendments........................... 451 R 3
1
6. The Westfall Act................................. 453 R 4
4
II. The Judgment Bar Today................................. 454 R 6-u
A. Application of the Judgment Bar to Invalidate Bivens st_
8
Claims............................................... 457 R -3
B. Retroactive Invalidation of Jury Verdicts .............. 460 R S
h
C. Invalidation Based on Judgments that the FTCA Does ee
Not Apply ........................................... 462 R t N
o
. 6
5
* Owen L. Coon Professor of Law, Northwestern University School of Law. Thanks to S
Greg Sisk and the conference organizers for the invitation to present this paper to the Bivens id
e
conference at the University of St. Thomas School of Law, and to the Northwestern faculty fund A
fRoeri nreerste,a Prcehte rs uSpcphourct.k ,T Shtaenvkes V floard eccokm, manedn ttso otnh ea pna retaicrliyp adnrtasf at tt oth eL aKuarna sHasi nlaews, fRaiccukl tyL ewvoyr,k Ashloexp 0
at which I presented an early version of the paper. 5/1
** J.D. 2010, Northwestern University School of Law. Neil Aggarwal is an associate in the 1
litigation department of Proskauer Rose LLP. /20
1. 28 U.S.C. §2676 (2006) (emphasis added). 12
1
417 6
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418 UNIVERSITY OF ST. THOMAS LAW JOURNAL [Vol.8:3
D. Alternative Tools of Coordination: Preclusion Law and
the Single Satisfaction Rule .......................... 465 R
III. Bivens Skepticism and Dynamic Textualism ............... 470 R
Conclusion ...................................................... 475 R
INTRODUCTION
Something has gone terribly wrong with the interpretation of the judg-
ment bar provision of the Federal Tort Claims Act (FTCA).2 Enacted back
in 1946, when the FTCA first became law, the judgment bar was designed
to block a specific kind of duplicative litigation that could result from the
government’s acceptance of respondeat superior liability in suits for ordi-
nary negligence. The provision was enacted with suits against the drivers of
government vehicles in mind: it would, for example, block negligence suits
against the driver of a federal postal truck whose act or omission had given
rise to an earlier negligence suit against the federal government.3 The idea
was straightforward: once a tort plaintiff has pursued a vicarious liability
claim against the federal government to judgment, whether successfully or
unsuccessfully, the judgment bar would block a later negligence suit against
the federal employee for the same act or omission. (If the plaintiff settled
with the government under the FTCA, the statutory release or settlement
bar would likewise foreclose litigation against the employee.) The statute,
in short, was meant to codify narrow versions of the judgment and release
bars that had developed at common law (as part of the moderation of strict
mutuality) and to ensure state court respect for the federal disposition.
Today, in what can only be regarded as the product of breathtakingly
dynamic statutory interpretation, courts have interpreted the judgment bar
to block a much broader range of claims than those made actionable under
3
1
the FTCA. Perhaps most troubling, courts have applied the judgment bar to 4
4
preclude constitutional tort claims brought under the authority of Bivens v. 6-u
Six Unknown-Named Agents of the Federal Bureau of Narcotics.4 Such Biv- st_
8
ens claims, as they have come to be known, seek to impose liability on the -3
officer or employee in her personal capacity. The government itself bears S
h
e
e
2. On the origins of the Federal Tort Claims Act, see Irvin M. Gottlieb, The Federal Tort t N
o
Claims Act—A Statutory Interpretation, 35 GEO. L.J. 1, 1–9 (1946); LESTER S. JAYSON & ROBERT . 6
C. LONGSTRETH, HANDLING FEDERAL TORT CLAIMS §1.01 (2011); WILLIAM B. WRIGHT, THE 5
FEDERAL TORT CLAIMS ACT 1–10 (1957). The judgment bar has largely, but not entirely, escaped Sid
scholarly attention. See, e.g., Stefan Sciaraffa, Note, Section 2676 of the FTCA: Why it Should not e
FBTarC AC3 .ojnuTtdeogmrmtp eoCnrltaa nbimeaors)u:. sHly. RF.i l5e3d7 B3 iavnends HC.Rla.i m64s,6 32 4H AeaMri.n Jg.s CBReIfMor. eL t.h 1e 4C7 o(m1m99. 6o) n( dthisec uJsusdinicgi atrhye, B 0
5
77th Cong. 9 (1942) [hereinafter Tort Claims] (statement of Francis M. Shea, Assistant Att’y /1
1
Gen., U.S. Dept. of Justice). /2
4. 403 U.S. 388 (1971). Courts hold that the judgment bar can bar a Bivens action. E.g., 0
1
Manning v. United States, 546 F.3d 430, 438 (7th Cir. 2008); Farmer v. Perrill, 275 F.3d 958, 2
964–65 (10th Cir. 2001); Gasho v. United States, 39 F.3d 1420, 1437 (9th Cir. 1994); Serra v. 1
6
Pichardo, 786 F.2d 237, 241–42 (6th Cir. 1986). :5
4
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2011] BIVENS, THE JUDGMENT BAR, AND DYNAMIC TEXTUALISM 419
no liability for Bivens claims; both the Supreme Court5 and Congress6 have
consistently refused to impose vicarious or respondeat superior liability on
the government for the constitutional torts of its employees. While one
might suppose that the absence of vicarious liability under the FTCA would
end the matter, the lower federal courts have nonetheless extended the judg-
ment bar to Bivens claims.
In perhaps the most arresting example of this expansive application of
the judgment bar rule, the Seventh Circuit held that the judgment bar ap-
plies retroactively to vitiate a Bivens judgment.7 In Manning v. United
States, the plaintiff obtained a substantial Bivens verdict against agents of
the Federal Bureau of Investigation.8 Manning also brought a separate
FTCA claim against the federal government.9 Not only did the judge, sitting
without a jury, reject the FTCA claim, but he also ruled that his disposition
retroactively invalidated Manning’s earlier jury verdict on the Bivens
claim.10 Apparently without carefully evaluating the limits of the judgment
bar and the threat to the constitutional right to trial by jury, the Seventh
Circuit affirmed.11 In the end, specific jury findings of official misconduct
rising to the level of a constitutional violation were set aside by a judge’s
determination that the facts would not support a government tort claim
under the FTCA.12
Understanding why this wrongheaded view of the judgment bar has
taken hold in the federal courts—and the Seventh Circuit is by no means
alone13—will take time and a patient reconstruction of the evolving inter-
pretation of the statute. Before we begin the task of reconstruction, how-
ever, we offer an overview from a relatively high level of generality. In
brief, the story goes like this: The FTCA’s judgment bar was adopted in
1946 out of concern with the prospect of duplicative litigation against the
3
government and its employees. Preclusion rules reflected in state common 1
4
law and the 1942 Restatement of Judgments provided a measure of protec- 46
tion against duplicative litigation in the master-servant context. If an injured -us
t_
8
-3
5. FDIC v. Meyer, 510 U.S. 471, 477–78 (1994). S
6. James E. Pfander & David Baltmanis, RethinkingBivens: Legitimacy and Constitutional h
e
Adjud7i.caMtioann,n 9in8g G, 5E4O6. LF..J3.d 1 a1t7 ,4 3183.1 (2009). et N
o
8. Id.at 432. . 6
9. Id. 6
10. Id. S
id
11. Id.at 438. e
12. Id. A
exam13p.le,F Soer rcraa sve.s Pthicaht aarpdpol,y 7 t8h6e Fju.2ddg m23e7n,t 2b4a1r –to4 2B (iv6ethn sC cilra. i1m9s8 6ra)i;s Heda rirni st hve. Usanmitee ds uSitta, tseese,, 4f2o2r 0
5
F.3d 322, 333–34 (6th Cir. 2005); Estate of Trentadue ex rel. Aguilar v. U.S. Dep’t of Justice, 397 /1
1
F.3d 840, 859 (10th Cir. 2005). For the suggestion that the judgment bar applies even to FTCA /2
claims dismissed for lack of jurisdiction, see for example, Hoosier Bancorp of Ind., Inc. v. Ras- 0
1
mussen, 90 F.3d 180, 184–85 (7th Cir. 1996); Farmer v. Perrill, 275 F.3d 958, 964–65 (10th Cir. 2
2001). For the retroactive application of the judgment bar, see Manning, 546 F.3d at 438; Aguilar, 1
6
397 F.3d at 859; Engle v. Mecke, 24 F.3d 133, 135–36 (10th Cir. 1994). :5
4
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420 UNIVERSITY OF ST. THOMAS LAW JOURNAL [Vol.8:3
plaintiff first sued the servant on a theory of negligence and lost, based on a
finding of non-negligence, the exoneration would block a second suit
against the master.14 While the master and servant were not in privity, com-
mon law courts nonetheless recognized that a judgment in the first action
might fairly bar the second claim; after all, the liability of the master would
depend on a showing of negligence that the plaintiff had failed to make.15
For complex reasons of mutuality that we will explore in greater detail be-
low, however, many state courts and the Restatement refused to treat the
judgment in an action against the master as a bar to further litigation against
the servant even where the issue of negligence had been resolved against
the plaintiff.16
The FTCA was drafted to fill this gap by allowing the employee to
assert a defense of non-mutual issue preclusion following an unsuccessful
action against the government. With its creation of a rule of non-mutual
issue preclusion, the judgment bar applied in the main to situations of deriv-
ative liability where the issue of negligence in the first proceeding was
identical to the issue of negligence in the second proceeding.17 Because it
depended on the essential identity of the negligence issues that arose in the
vicarious liability context, the judgment bar had no application when the
initial judgment did not negate the liability of the defendant in the second
action.18 Imagine that the government successfully defended an FTCA
claim on the ground that the employee had committed an assault rather than
an act of simple negligence. Such an argument might succeed, for example,
in the context of malpractice litigation, at least in states that characterized
malpractice as an assault when the physician performed an operation that
exceeded the scope of the patient’s consent.19 An assault characterization
3
14. RESTATEMENT (FIRST) OF JUDGMENTS §96(1)(a) (1942) (declaring that in an action by 14
the injured party against the servant, where the master has a right to claim indemnity, a valid 46
judgment against the injured party “terminates the cause of action against the [master]”). -u
s
15. See Canin v. Kesse, 28 A.2d 68, 70 (N.J. Dist. Ct. 1942) (“Strictly speaking, master and t_
servant are not in privity, but, where the relationship is undisputed and the action is purely deriva- 8-3
tive and dependent upon the doctrine of respondeat superior, it constitutes an exception to the S
general rule.”); Wolf v. Kenyon, 273 N.Y.S. 170, 171–72 (N.Y. App. Div. 1934) (similar h
e
holding). e
16. See RESTATEMENT (FIRST) OF JUDGMENTS §96(2) (1942) (the entry of judgment in an t N
o
earlier action by the injured party against the master has no effect in a subsequent claim against . 6
the servant). 6
17. See Davis v. Perryman, 286 S.W.2d 844, 847–48 (Ark. 1956) (applying judgment bar to S
id
block suit against servant for the “same mishap” where it was conceded in the first suit that the e
servant was at all times acting within the scope of employment); Canin, 28 A.2d at 69 (applying B
jnuedgglimgeenntt abcatr” )t.o block suit against servant following an exoneration of the master “for the same 0
5
18. SeeFLEMING JAMES, JR.ETAL.,CIVIL PROCEDURE 532 (1965); Note, The Federal Tort /1
Claims Act, 56 YALE L.J. 534, 559 n.170 (1947) (citing Gould v. Evansville & Crawfordsville 1/2
R.R. Co., 91 U.S. 526 (1875)) (holding that a dismissal for lack of subject matter jurisdiction 0
1
“cannot be res judicata of the issues involved in the action”). 2
19. See Moos v. United States, 118 F. Supp. 275, 276–77 (D. Minn. 1954) (concluding that 1
6
surgeon who operated on the wrong leg had committed an assault that fell outside the scope of the :5
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2011] BIVENS, THE JUDGMENT BAR, AND DYNAMIC TEXTUALISM 421
would exonerate the government; the FTCA recognized vicarious liability
for negligent acts committed in the scope of employment, but it expressly
excluded assault claims from its coverage.20 Needless to say, a judgment for
the government based on the assault exception would not exonerate the phy-
sician from personal tort liability under state malpractice law. As a result,
the victim was free to pursue the assault claim against the physician not-
withstanding the codification of the judgment bar.
The judgment bar implemented this rule of non-mutual issue preclu-
sion with language that has grown more ambiguous with the passage of
time. By its terms, the statute makes a judgment in an action against the
government “a complete bar to any action” brought against the employee
“by reason of the same subject matter.”21 The drafters borrowed the “same
subject matter” reference from the Restatement where it had been used to
describe a narrow subset of claims that rested on the same theory of liabil-
ity.22 The “same subject matter” formulation was meant to capture the logic
underlying the judgment bar’s relaxation of mutuality; only when the prior
decision addressed the identical legal question—the “same subject mat-
ter”—was it fair to treat the prior judgment as a bar to a subsequent claim
against the employee.23 On this view, a government judgment on the basis
of a finding of non-negligence fairly bars a negligence claim against the
employee arising from the same act or omission. A government judgment
on some other basis, however, should not bar a suit against the employee on
theories of tort liability that the prior judgment fails to negate. No issue
preclusive effect attaches to such a judgment.
The model of government tort litigation has changed in the last genera-
tion. First, the Bivens decision in 1971 recognized an implied federal cause
3
1
FTCA);cf. United States v. Hambleton, 185 F.2d 564, 567 (9th Cir. 1950) (lengthy investigation 44
amounted to an assault and therefore fell outside the scope of FTCA’s coverage); Duenges v. 6-u
United States, 114 F. Supp. 751 (S.D.N.Y. 1953) (honorably discharged army veteran wrongly s
jailed for desertion amounted to false arrest and imprisonment and therefore fell outside the scope t_8
of the FTCA’s coverage). -3
S
20. 28 U.S.C. §2680(h) (2006) excepted claims arising out of assault, battery, false impris- h
onment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, ee
deceit, or interference with contract rights from the ambit of the FTCA. However, claimants were t N
still free to pursue other intentional tort claims against the Government. Such claims included: o
trespass, conversion, and intentional infliction of emotional distress. Paul F. Figley, Understand- . 6
7
ing the Federal Tort Claims Act: A Different Metaphor, 44 TORT TRIAL & INS. PRAC. L.J. 1105, S
1131–32 (2009) (collecting cases). id
e
21. 28 U.S.C. §2676 (2006) (emphasis added). A
2223.. SCeoengRrEeSsTsiAoTnEaMl EteNsTti m(FoInRyST d)isOcFu sJsUiDngG MthEeN TjuSd §g§m7en0t, b8a4r (i1n9d4ic2a)t.es that Congress anticipated 0
5
that the judgment bar would only bar subsequent claims that were functionally equivalent to /1
claims that had been tried to judgment against the government under the FTCA. Tort Claims, 1/2
supra note 3, at 31 (discussing the judgment bar and stating the “judgment in a tort action consti- 0
1
tutes a bar to further action upon the same claim, not only against the Government (as would have 2
been true [in the absence of the judgment bar]) but also against the delinquent employee . . . . ”) 1
6
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422 UNIVERSITY OF ST. THOMAS LAW JOURNAL [Vol.8:3
of action for those alleging a violation of their Fourth Amendment rights.24
Next, the 1974 amendments to the FTCA broadened the scope of the gov-
ernment’s liability to include certain intentional torts committed by law en-
forcement officers.25 In expanding the government’s respondeat superior
liability, Congress obviously broadened the application of the judgment bar
to some extent. It tried to make clear, however, that it did not mean to
displace the Bivens action; the new remedies under the FTCA were meant
to supplement, rather than exclude, the right of individuals to pursue consti-
tutional tort claims26 as the Court concluded in Carlson v. Green.27 Finally,
in 1988, Congress expanded the scope of employee immunity from liability
in the Westfall Act but deliberately left constitutional claims outside the
FTCA. Despite Congress’s persistent effort to preserve Bivens,28 the
FTCA’s expanded remedies have been read, in combination with the judg-
ment bar, to exclude Bivens liability in much the way Congress meant to
avoid.29
A variety of factors have contributed to the changing interpretation of
the judgment bar. First, the federal courts have displayed little interest in
understanding the origins and early operation of the judgment bar, prefer-
ring to focus on the text of the statute and its application to modern litiga-
tion.30 Second, modern courts confront a very different litigation landscape.
At the time the judgment bar was adopted, the plaintiff could not routinely
consolidate FTCA litigation against the government and state tort claims
against an employee in a single proceeding.31 The district court lacked sup-
24. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388,
397 (1971).
25. 28 U.S.C. §2680(h) (1974).
26. See S. REP. NO. 93-588, at 3 (1973), reprinted in 1974 U.S.C.C.A.N. 2789, 2791 (“[T]his 3
provision should be viewed as a counterpart to the Bivens case and its progenty [sic] . . . ”). 14
27. Carlson v. Green, 446 U.S. 14, 20 (1980). 46
28. Between the years of 1973 and 1983, the Department of Justice made several failed -u
s
attempts to convince Congress to preempt the Bivens action by amending the FTCA to provide an t_
exclusive remedy for constitutional violations. See, e.g.,H.R. 10439, 93d Cong. §§2–4 (1974); S. 8-3
2117, 95th Cong. §2 (1978); S. 829, 98th Cong. §2 (1983); H.R. 595, 98th Cong. §1 (1983). S
29. See supra note 13 (collecting cases that apply the judgment bar to Bivens claims raised in h
e
the same suit). e
30. See infra Part II. t N
o
31. Courts interpret the phrase “by reason of the same subject matter” as incorporating the . 6
modern transactional test into the judgment bar. Thus, modern courts interpret the judgment bar as 7
precluding claims against government employees where those claims arise out of the same trans- S
id
action as those that gave rise to an FTCA action. E.g., Serra v. Pichardo, 786 F.2d 237, 239 (6th e
Cir. 1986); see also Unus v. Kane, 565 F.3d 103 (4th Cir. 2009) (holding that a judgment against B
tphleo ygeoev);e rMnmanennitn gu nvd. eUr nthitee dF STtCatAes ,p 5re4c6l uFd.e3dd 4a 3B0i,v 4e3n3s (c7lathim C iarg. a2i0n0s8t )t h(fei ntdoirntigo uths agt oav celranimme angt aeinms-t 0
5
a government employee could not be sustained where plaintiff brought a simultaneous claim /1
1
against the government); Harris v. United States, 422 F.3d 322, 333–34 (6th Cir. 2005) (holding /2
that a court’s adjudication of an FTCA claim barred a plaintiff’s claim against a government 0
1
employee); Farmer v. Perrill, 275 F.3d 958, 962 (10th Cir. 2001) (stating that a claim under the 2
FTCA precludes a victim from bringing a Bivens action against the employee responsible for the 1
6
tort); Engle v. Mecke, 24 F.3d 133, 135 (10th Cir. 1994) (asserting that a decision to bring a claim :5
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2011] BIVENS, THE JUDGMENT BAR, AND DYNAMIC TEXTUALISM 423
plemental jurisdiction over pendent party claims against the employee, and
the state court could not hear FTCA claims.32
Today, in contrast, Bivens and FTCA claims both arise under federal
law for jurisdictional purposes and often appear in a single proceeding
joined under Rule 2033 on the basis that they grow out of the same transac-
tion or occurrence.34 The existence of a transactional relationship has en-
couraged the courts to treat the Bivens claim as one brought “by reason of
the same subject matter”35 as any claim brought under the FTCA. Third,
federal courts undoubtedly feel obliged to avoid the threat of double recov-
eries seemingly posed by the assertion of overlapping claims under Bivens
and the FTCA (although other tools of coordination could prevent duplica-
tive recovery).36 Finally, the federal courts today display a degree of hostil-
ity towards Bivens claimants that dramatically contrasts with the solicitude
for the rights of individual claimants that informed judicial decisions a half
century ago.
In this three-part article, we explore the issue preclusive origins of the
judgment bar and show why it does not come into play as a device to coor-
dinate Bivens litigation with tort claims under the FTCA. Part I examines
the factors that led to the adoption of the judgment bar and describes its
operation in light of preclusion law and the scope of state and federal judi-
cial authority over the claims in question. Part II examines the sharply dif-
under the FTCA precludes bringing an additional action against employee responsible for the
tort); Arevalo v. Woods, 811 F.2d 487, 490 (9th Cir. 1987) (stating that a government employee is
“no longer answerable” after judgment entered against government for FTCA claim).
32. See, e.g., Benbow v. Wolf, 217 F.2d 203, 205 (9th Cir. 1954) (dismissing suit against
government employee because claimant and employee were not diverse); United States v.
Lushbough,200 F.2d 717, 721–22 (8th Cir. 1952) (stating in dicta that where there is no diversity
3
of citizenship between claimant and employee, court cannot exercise jurisdiction over employee); 1
4
Donovan v. McKenna, 80 F. Supp. 690, 690 (D. Mass. 1948) (“I find no language in the Act 4
6
whereby the Government consented to be sued along with its employees.”). Cf. Finley v. United -u
States, 490 U.S. 545 (1989) (refusing to allow pendent party jurisdiction in action brought against st_
government under FTCA). 8
33. FED. R. CIV. P. 20 allows permissive joinder of multiple defendants in a single lawsuit if -3 S
(1) a right to relief is asserted against each defendant that relates to or arises out of the same h
e
transaction or occurrence; and (2) any question of law or fact common to all defendants arises in e
the action. Claimants bring claims under the FTCA against the government and against federal t N
targaennstasc tuionnd.erS eBei viennfsr ai nn othtee 3sa4m. e action where those claims are related and arise out of the same o. 68
34. Modern courts try FTCA and Bivens claims in the same action as a matter of course. See, S
e.g.,Harris,422 F.3d at 334; Rodriguez v. Handy, 873 F.2d 814, 816 (5th Cir. 1989); Aetna Cas. ide
& Sur. Co. v. United States, 570 F.2d 1197, 1201 (4th Cir. 1978); Serra, 786 F.2d at 241. A
3356.. 2E8.g U.,.HS.aCll.o §ck2 6v7. 6B (o2n0n0e6r),. 387 F.3d 147, 156 (2d Cir. 2004) (stating that the principal 0
5
purpose of the judgment bar is to prevent duplicative recoveries); Clifton v. Miller, No. 97-2342, /1
1
1998 WL 78992, at *2 (7th Cir. Feb. 19, 1998) (declaring that the judgment bar prevents double /2
recoveries); Kreines v. United States, 959 F.2d 834, 838 (9th Cir. 1992) (“We thereby read [the 0
1
judgment bar] to preclude dual recover[ies] . . . .”); Ting v. United States, 927 F.2d 1504, 1513 2
(9th Cir. 1991) (similar holding); Henderson v. Bluemink, 511 F.2d 399, 404 (D.C. Cir. 1974) 1
6
(similar holding). :5
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424 UNIVERSITY OF ST. THOMAS LAW JOURNAL [Vol.8:3
ferent conception of the judgment bar that has taken hold in the lower
federal courts and the various factors that help to explain the drift away
from the original operation of the provision. Divorced from its context and
an understanding of the factors that gave rise to its enactment, the text of
the judgment bar produces dysfunctional results. Part III generalizes from
the lessons of the judgment bar. Textualism promises judicial modesty and
deference to Congress; but as the growing power of the judgment bar so
vividly illustrates, textualism can enable the federal courts to achieve results
very much at odds with the expectations of the Congress that adopted the
relevant language. Unless tempered with an appropriately modest assess-
ment of the expectations of the enacting Congress, textualism can facilitate
a kind of judicial immodesty and willfulness quite at odds with the claims
of its most eloquent supporters.
I. THE 1946 JUDGMENT BAR AND THE COORDINATION
OF VICARIOUS LIABILITY
Although Congress finally adopted the FTCA after a United States
military plane crashed into the Empire State Building,37 the statute had been
in the works for a number of years.38 To understand the Act’s operation and
the role of the judgment bar, we must first understand the broader legal
context in which the FTCA was adopted and the fundamental goals of the
legislation. This part first sketches the origins of the FTCA and then exam-
ines the understood operation of the judgment bar circa 1946.
A. The Adoption of the FTCA
Scholars agree that the FTCA was adopted in part to provide compen-
sation to victims of government wrongdoing and in part to free Congress 3
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from the burden of passing on petitions for private relief.39 Both of these 44
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37. See Mark C. Niles, Nothing But Mischief”: The Federal Tort Claims Act and the Scope t_
of Discretionary Immunity, 54 ADMIN. L. REV. 1275, 1279 (2002). 8-3
38. Dalehite v. United States, 346 U.S. 15, 24 (1953) (“The Federal Tort Claims Act was S
passed by the Seventy-Ninth Congress in 1946 . . . after nearly thirty years of congressional h
e
consideration . . . .”). e
39. Prior to 1946, persons injured by a government employee had to petition Congress to t N
o
pass special, private legislation in order to obtain financial compensation from the government. . 6
Paul Figley, In Defense of Feres: An Unfairly Maligned Opinion, 60 AM. U. L. REV. 393, 8
397–403 (2010). Such private bills are termed “private claims bills.” Id. at 400. The process of S
id
passing a private claims bill was “slow, cumbersome, and frequently inequitable since identical e
cAFlEaDDiMmEIRsNA IcSLoT uRJUlAdRT IIrSVeDEcI eCLiTvAIeOW Nv a 6s§Atl9-y6. 2 dt.3oif, f -ea7rt e (n6rte3 v5tr. enead.t3m. 81e n9(5t8 t6bh)y )e . ddFi. fuf2ret0rh0een7rt)m C(oqrouen,o gtCrineosgns geBsre.A”sS sIE LwR JWa.s I NMo vECeZHrIrNEuMEnSE bREyITN sSAuKLcY.h,, B 05
bills. For example, in the Sixty-Eighth Congress, 2200 private claims bills were introduced of /1
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which 250 became law; in the Seventieth Congress, 2268 private claims bills were introduced of /2
which 336 became law; and in the Seventy-Sixth Congress, 1763 private claims bills were intro- 0
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duced of which 315 became law. Tort Claims,supranote 3, at49–56 (discussing the burden that 2
private claims bills imposed on Congress). Congress enacted the FTCA in order to relieve itself of 1
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the burden that such private claims bills imposed and to provide claimants with a just system :5
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2011] BIVENS, THE JUDGMENT BAR, AND DYNAMIC TEXTUALISM 425
concerns arose from the way the federal government’s sovereign immunity
interacted with the common law doctrine of respondeat superior. Under the
doctrine of respondeat superior, the master generally bears vicarious liabil-
ity for the torts of the servant, at least those committed within the course
and scope of the servant’s employment.40 In the case of torts committed by
the employees of the federal government, however, the doctrine of sover-
eign immunity prevented the common law rule from coming into play.41
Instead of suing the federal government for the torts of its servants, individ-
uals would sue government officers and employees themselves. In the early
years of the republic, federal officers (including military officials, customs
officers, and tax collectors) found themselves defending personal liability
claims brought by those who alleged a trespassory taking of property.42 The
government often supplied counsel to defend such litigation and would
often indemnify the official in cases where damages were awarded.43 (Gov-
ernment employees had to submit applications for indemnity to Congress in
the form of petitions for private legislation.44) In effect, sovereign immunity
served to place Congress in charge of making the principal-agent determi-
nations that shaped the federal government’s vicarious liability for the tor-
tious acts of its employees. Congress would enact legislation to compensate
victims when it concluded that the employee had acted as the government’s
agent in inflicting the injury.
within which they could pursue their claims against the government. H.R. REP. NO. 71-2800, at 2
(1931) (explaining that the private claims process was unjust to claimants); Kent Sinclair &
Charles A. Szypszak, Limitations of Action Under the FTCA: A Synthesis and Proposal, 28 HARV.
J. ON LEGIS. 1, 5–9 (1991) (explaining the dual purpose of the FTCA); Jeff L. Lewin, The Tail
Wags the Dog: Judicial Misinterpretation of the Punitive Damages Ban in the Federal Tort
Claims Act, 27 WM. & MARY L. REV. 245, 263–67 (1986) (same).
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40. RESTATEMENT (FIRST) OF AGENCY §§215, 216 cmt. a (1933) (master is liable for the 1
4
torts that his servant commits while acting within the scope of his employment); RESTATEMENT 4
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(SECOND)OF AGENCY §219.1 (1958) (“A master is subject to liability for the torts of his servants -u
committed while acting in the scope of their employment.”). s
t_
41. SeeFigley,supranote 39, at 397–98. 8
42. See, e.g.,Elliot v. Swartwout, 35 U.S. (10 Pet.) 137, 138 (1836) (to recover customs tax -3 S
from collector); Osborn v. Bank of the U.S., 22 U.S. (9 Wheat.) 738, 749 (1824) (injunction h
e
against trespassory taxation); Meigs v. Mclung’s Lessee, 13 U.S. (9 Cranch) 11, 11 (1815) (eject- e
ment); Wise v. Withers, 7 U.S. (3 Cranch) 331, 332 (1806) (damages for wrongful seizure of t N
property to enforce illegal fine). o. 6
43. Tort Claims,supra note 3, at9 (statement of Francis M. Shea, Assistant Att’y Gen., U.S. 9
Dept. of Justice: “It has been found that the Government, through the Department of Justice, is S
id
constantly being called on by the heads of the various agencies to go in and defend, we will say, a e
person who is driving a mail truck when suit is brought against him for damages or injuries caused A
wushuialell yh em wadaes. oItp ehraast inbge etnh ef oturuncdk, owviethr ilno nthge ysecaorsp eo fo fe xhpise rdieuntciees,. tAhaltl eugnalteiosns st hoef Gneogvleigrnemnceen ta ries 0
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willing to go in and defend such persons the consequence is a very real attack upon the morale of /1
the services. Most of these persons are not in a position to stand or defend large damage suits, and 1/2
they are of course not generally in a position to secure the kind of insurance which one would if 0
1
one were driving for himself.”). 2
44. James E. Pfander & Jonathan L. Hunt, Public Wrongs and Private Bills: Indemnification 1
and Government Accountability in the Early Republic, 85 N.Y.U. L. REV. 1862, 1865 (2010). 6:5
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